51 Ga. App. 68 | Ga. Ct. App. | 1935
1. Where mortgaged property has been actually and legally sold under the levy of a mortgage execution, an affidavit of illegality, filed after such sale, is filed too late to, convert the proceeding into mesne process, and the affidavit of illegality should be dismissed on motion. See, in this connection, Civil Code (1910), §§ 3300, 3301, 3302 (Code of 1933, §§ 67-801, 67-802, 67-803) ; Smith v. McPherson, 78 Ga. 84; Kennedy v. Miller, 179 Ga. 234 (175 S. E. 588).
2. Under the foregoing ruling and the facts of this case, the court erred in overruling the written motion of the plaintiff to strike the affidavit of illegality. The motion contained the following grounds: (a) “That it appears that the property conveyed and described in said mortgage foreclosure was regularly, fairly, and legally sold on March 29, 1934.” (b) “That it appears that said affidavit of illegality was filed by said defendant on March 30, 1934.” (c) “That said affidavit of illegality filed by said defendant was filed too late to constitute any defense or to raise any issue under said mortgage foreclosure.” (d) “That at the time of the filing of said affidavit of illegality said mortgage fi. fa. had become functus officio.”
Judgment reversed.